KBS Reference Desk: Claims for COVID Exposure at School

Q:       A student has been hospitalized after becoming infected with COVID-19 while attending summer school at our District. The parent has threatened to sue if the District does not offer to pay for the student’s medical bills. Does the parent have any legal recourse against the District?

A:        Probably not.  There is no viable cause of action under Texas law for exposure to COVID-19, as school districts are immune from all tort claims except those involving the use or operation of a motor vehicle. Moreover, while there is one potential theory available under federal law, it has never been successfully established in our federal circuit.

            It is well-settled under Texas law that school districts are immune from all personal injury and property damage claims resulting from the negligent use or operation of a motor vehicle. “Use” and “operation” are defined narrowly and would not support, for example, a claim that a student contracted COVID-19 while riding the school bus.

            There is one plausible cause of action under federal law, but it is nearly impossible to prove and has never been successfully established in the federal circuit where Texas sits. The cause of action is referred to as the “state-created danger” theory and stems from a 1989 U.S. Supreme Court decision analyzing the Due Process Clause of the Fourteenth Amendment. To recover under this theory, the student would be required to show that (1) the District created or increased the danger to the student, who was a known victim; and (2) the District was deliberately indifferent to that danger.

The importance of having a “known victim” cannot be overstated, as our federal circuit court has held that “the state-created danger theory requires a known victim, and the fact that a school’s policy or procedure presents a risk of harm to students in general is inadequate to satisfy this requirement.” Adding to the difficulty in establishing a claim is the requirement that the student prove that the District acted with deliberate indifference with specific respect to the student. To act with deliberate indifference, the District must consciously disregard a known and excessive risk to the student’s health and safety.

Finally, because the District is considered a local governmental entity under state law, a student asserting a constitutional deprivation would have to establish “municipal liability.” This means the District could not be held liable under a theory of respondeat superior/vicarious liability. Instead, the student would have to identify a specific policy implemented by the District’s Board of Trustees that was the moving force behind the constitutional deprivation.

In conclusion, there is no tort liability under Texas law for personal injury or illness. Secondly, it is unlikely that a parent/student would be able to succeed under a state-created danger theory in a federal setting. Moreover, there is no parallel cause of action available under the Texas Constitution. For specific questions or additional information regarding potential liability in relation to COVID-19, please contact your local school law attorney.

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